United States District Court, S.D. New York
February 3, 2004.
HUA ZAO YANG, Plaintiff -against- ELRAC, INC. d/b/a ENTERPRISE RENT A CAR, and JOSE MARTINEZ, Defendants
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
OPINION AND ORDER
The above captioned case is before this Court on a Notice of Removal
entered by Defendants on November 20, 2003, pursuant to 28 U.S.C. § 1446.
Plaintiff filed his original complaint in this matter with the County
Clerk of New York County, New York on October 3, 2003. Plaintiff then
served Defendant with a summons and a copy of the complaint by filing
these same with the Secretary of the State of New York on October 1 7,
2003 Defendant Enterprise Rent A Car ("ELRAC") received summons from the
State on October 20, 2003 Defendant Martinez. received summons on the
following day, October 21, 2003. The motion presently before the Court is
a Motion to Remand, filed by Plaintiff on November 28, 2003, pursuant to
28 U.S.C. § 1447. The time for Defendant to file a response has elapsed.
Thus, I decide the Motion on Plaintiff's papers alone. For reasons set
forth below, the Motion to Remand is granted
28 U.S.C. § 1446(b) requires that "notice of removal of a civil
action or proceeding shall be filed within thirty days after the receipt
by the defendant, through service or otherwise, of a copy of the initial
pleading . . ." I have held in a previous opinion that when service of
effectuated by service upon the Secretary of State, "Responsibility for
deliveringNC. the summons and complaint then [falls] upon the Secretary."
Grello v. J.C. Penny Corporation, Inc., 2003 WL 22772397, at * 1
(S.D.N.Y., Nov. 21, 2003). In accordance with the reasons expressed in
that opinion, the thirty-day deadline for filing a Notice of Removal
tolls thirty days from the receipt of the initial pleadings by the
defendants themselves, rather than the date on which the Secretary of
State has been served.
In this case, it is undisputed that one of the defendants, ELRAC,
received summons on October 20, 2003. The second defendant, Martinez,
received summons on October 21, 2003. Defendants then collectively filed
for removal on November 20, 2003. Therefore, while Notice of Removal was
properly filed by Martinez within the thirty-day deadline, ELRACs Notice
was one day late.
It is established that "failure of the first defendant served in a
state court action to file a notice of removal with the district court
within thirty days of service will prevent all subsequently served
defendants from removing the action." I4C C. Wright, A Miller, & E
Cooper, Federal Practice and Procedure § 3732 at 337 (3d ed. 1998) See
also Sentry Marketing. Inc. v. Unisource Worldwide. Inc., 42 F. Supp.2d 188
(N.D.N.Y. 1999) (holding that 30-day rule runs from date of receipt by
first defendant). This is so unless there are outstanding issues of
equity which make the first served rule undesirable. See e.g., Varela v.
Flintlock Constr. Inc., 148 F. Supp.2d 297 (S.D.N.Y. 2001) (holding that
defendant named in amended complaint seven years after inception of
action was entitled to thirty days from date of service to remove case).
I hold there are no equity issues which would militate against the
first served rule in tins case. Therefore both defendants are subject to
the thirty day deadline to file Notice of Removal
that began when BLRA received summons on October 20, 2003. Because
the notice of Removal was untimely filed, this case will be remanded to
the Supreme Court of the State of New York, New York County
The Clerk of this court is directed to return the file to the Clerk of
the state court identified above.
It is SO ORDERED.
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